Romero v. Colvin

Filing 24

ORDER by Magistrate Judge Kristen L. Mix on 3/29/16 re: 14 SOCIAL SECURITY ADMINISTRATIVE RECORD. (lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02626-KLM
RAYMOND ROMERO,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.
______________________________________________________________________
ORDER
______________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court1 on the Social Security Administrative Record
[#14],2 filed September 23, 2014, in support of Plaintiff’s Complaint [#1] seeking review of
the decision of Defendant Carolyn W. Colvin, Acting Commissioner of the Social Security
Administration, (“Defendant” or “Commissioner”) denying Plaintiff’s claim for supplemental
security income benefits pursuant to Title XVI of the Act, 42 U.S.C. §§ 401-433. On May
26, 2015, Plaintiff filed an Opening Brief [#17] (the “Brief”). Defendant filed a Response
[#18] in opposition, and Plaintiff filed a Reply [#19]. The Court has jurisdiction to review the
Commissioner’s final decision under 42 U.S.C. § 405(g). The Court has reviewed the entire
case file and the applicable law and is sufficiently advised in the premises. For the reasons

1

The parties consented to proceed before the undersigned for all proceedings pursuant
to 28 U.S.C. § 636(c) and D.C.COLO.LCivR 72.2. See Consent Form [#22]; Order of Reference
[#23].
2

“[#14]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.

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set forth below, the decision of the Commissioner is AFFIRMED.
I. Factual and Procedural Background
Plaintiff alleges that he became disabled at the age of forty-eight on May 18, 2011.
Tr. 22, 30, 184.3 On May 27, 2011, he filed for Title XVI supplemental security income. Tr.
12. Plaintiff’s claim was initially denied on June 7, 2011. Tr. 12, 174. Plaintiff then
requested a hearing on his claim. Tr. 117. On January 10, 2013, a hearing was held
before an Administrative Law Judge (the “ALJ”). Tr. 11-12, 25-53. On February 6, 2013,
the ALJ issued an unfavorable decision finding that Plaintiff was “not disabled under section
1614(a)(3)(A) of the Social Security Act.” Tr. 24.
The ALJ determined that Plaintiff had not engaged in substantial gainful activity
since May 27, 2011. Tr. 14. The ALJ found that Plaintiff has the following severe
impairments: “affective disorder, learning disorder, degenerative disc disease, and
arthropothies of the knees.” Id. However, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that “meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
416.920(d), 416.925 and 416.926).” Id. The ALJ next determined that Plaintiff has the
residual functional capacity (“RFC”)
to perform a range of light work as defined in 20 CFR 416.967(b) with the
following limitations: [Plaintiff] is able to maintain concentration, persistence
and pace to carry out, understand and remember instructions that can be
learned in one month and have a reasoning, math and language level of no
greater than “1” as described in the Dictionary of Occupational
Titles/Selected Characteristics of Occupations; [Plaintiff] can occasionally
interact with supervisors, coworkers, and the public; [Plaintiff] is able to lift

3

The Court refers to the Transcript of the Administrative Proceedings, located at Docket
Nos. 14, 14-1, 14-2, 14-3, 14-4, 14-5, 14-6, 14-7, 14-8, and 14-9 by the sequential transcript
numbers instead of the separate docket numbers.

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and carry 10 pounds frequently and 20 pounds occasionally; [Plaintiff] can sit
for six hours during an eight-hour workday; [Plaintiff] can stand and/or walk
for a combined total of six hours out of an eight-hour workday; [Plaintiff] is
able to occasionally stoop, kneel and crouch; and . . . must avoid climbing
ladders and scaffolds.
Tr. 16. Based on Plaintiff’s testimony and documents submitted to the ALJ, the ALJ found
that Plaintiff did not have past relevant work. Tr. 22. Considering Plaintiff’s age, education,
work experience, and the testimony of an impartial vocational expert (“the VE”), the ALJ
found that “there are jobs that exist in significant numbers in the national economy that
[Plaintiff] can perform.”

Id.

The ALJ concluded that Plaintiff could perform the

representative occupations of press operator and inspector, grader and sorter. Tr. 23. The
ALJ therefore found Plaintiff was not disabled at step five of the sequential evaluation. Id.
Plaintiff appealed the decision to the Appeals Council, which denied his request for
review of the ALJ’s decision. Tr. 1-6. Therefore, the ALJ’s decision became a final
decision of the Commissioner for purposes of judicial review. 20 C.F.R. §§ 416.1481,
422.210(a).
II. Standard of Review and Applicable Law
Pursuant to the Act:
[T]he Social Security Administration is authorized to pay disability insurance
benefits and Supplemental Security Income to persons who have a
“disability.” A person qualifies as disabled, and thereby eligible for such
benefits, “only if his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other
kind of substantial gainful work which exists in the national economy.”
Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (quoting 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(B)). Under the applicable legal standard, a claimant is disabled if he or she
is unable “to engage in any substantial gainful activity by reason of any medically

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determinable physical or mental impairment . . . which has lasted or can be expected to last
for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(a); see also
Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009) (quoting 20 C.F.R. § 416.905(a)). The
existence of a qualifying disabling impairment must be demonstrated by “medically
acceptable clinical and laboratory diagnostic” findings.

42 U.S.C. §§ 423(d)(3),

423(d)(5)(A).
“When a claimant has one or more severe impairments the Social Security [Act]
requires the [Commissioner] to consider the combined effects of the impairments in making
a disability determination.” Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir. 1987)
(citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of a severe impairment or
combination of impairments does not require a finding that an individual is disabled within
the meaning of the Act. To be disabling, the claimant’s condition must be so functionally
limiting as to preclude any substantial gainful activity for at least twelve consecutive
months. See Kelley v. Chater, 62 F.3d 335, 338 (10th Cir. 1995).
The Court reviews a final decision by the Commissioner by examining the
administrative record and determining “whether the [ALJ’s] factual findings are supported
by substantial evidence in the record and whether the correct legal standards were
applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). However, the Court
“may neither reweigh the evidence nor substitute [its] judgment for that of the agency.”
Harper v. Colvin, 528 F. App’x 887, 890 (10th Cir. 2013) (quoting Barnett v. Apfel, 231 F.3d
687, 689 (10th Cir. 2000)). In other words, the Court does not reexamine the issues de
novo. Sisco v. U.S. Dep’t of Health & Human Servs., 10 F. 3d 739, 741 (10th Cir. 1993).
Thus, even when some evidence could support contrary findings, the Court “may not

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displace the agency’s choice between two fairly conflicting views,” even if the Court may
have “made a different choice had the matter been before it de novo.” Oldham v. Astrue,
509 F.3d 1254, 1257-58 (10th Cir. 2007).
A.

Legal Standard
The Social Security Administration uses a five-step framework to determine whether

a claimant meets the necessary conditions to receive Social Security benefits. See 20
C.F.R. § 416.920. The claimant bears the burden of proof at steps one through four, and
if the claimant fails at any of these steps, consideration of any subsequent steps is
unnecessary. Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (“If a determination
can be made at any of the steps that a claimant is or is not disabled, evaluation under a
subsequent step is not necessary.”). The Commissioner bears the burden of proof at step
five. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Step one requires the ALJ to determine whether a claimant is “presently engaged
in substantial gainful activity.” Wall, 561 F.3d at 1052 (quoting Allen v. Barnhart, 357 F.3d
1140, 1142 (10th Cir. 2004)). If not, the ALJ considers at step two whether a claimant has
“a medically severe impairment or impairments.” Id. “An impairment is severe under the
applicable regulations if it significantly limits a claimant’s physical or mental ability to
perform basic work activities.” Id. (citing 20 C.F.R. § 404.1521). Next, at step three, the
ALJ considers whether a claimant’s medically severe impairments are equivalent to a
condition “listed in the appendix of the relevant disability regulation,” i.e., the “Listings.”
Wall, 561 F.3d at 1052 (quoting Allen, 357 F.3d at 1142). “If a claimant’s impairments are
not equivalent to a listed impairment, the ALJ must consider, at step four, whether a
claimant’s impairments prevent [him] from performing [his] past relevant work.” Wall, 561

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F.3d at 1052 (citing Allen, 357 F.3d at 1142). “Even if a claimant is so impaired, the agency
considers, at step five, whether [he] possesses the sufficient [RFC] to perform other work
in the national economy.” Id.
B.

Substantial Evidence
An ALJ must consider all evidence and explain why he or she finds a claimant not

disabled. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). However, the ALJ need
not specifically “reference everything in the administrative record.” Wilson, 602 F.3d at
1148. “Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. at 1140 (internal quotations omitted). “It requires
more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084
(10th Cir. 2007). A decision by the ALJ is not based on substantial evidence “if it is
overwhelmed by other evidence in the record . . . .” Grogan v. Barnhart, 399 F.3d 1257,
1261-62 (10th Cir. 2005). In other words, the Court’s determination of whether the ALJ has
supported his or her ruling with substantial evidence “must be based upon the record taken
as a whole.” Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). Further,
evidence is not substantial if it “constitutes mere conclusion.” Musgrave v. Sullivan, 966
F.2d 1371, 1374 (10th Cir. 1992). In addition, “if the ALJ failed to apply the correct legal
test, there is a ground for reversal apart from a lack of substantial evidence.” Thompson
v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
III. Analysis
Plaintiff requests judicial review of the ALJ’s decision denying him supplemental
security income. Brief [#17]. Specifically, Plaintiff argues that the ALJ erred at steps three,
four, and five of his analysis. The Court addresses each argument in turn.

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A.

Step 3: Listing 12.05C
Plaintiff argues that the ALJ erred in his step three analysis by finding that Plaintiff

did not “have an impairment or combination of impairments that meets or medically equals
the severity of one of the listed impairments” under Listing 12.05. Tr. 14. Specifically,
Plaintiff asserts that the ALJ erred in finding that Plaintiff did not meet or equal the severity
requirements under “paragraph C” of Listing 12.05. Brief [#17] at 8.
Section 12.05 provides:
12.05 Intellectual disability:4 Intellectual disability refers to significantly
subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period; i.e., the
evidence demonstrates or supports onset of the impairment before age 22.
The required level of severity for this disorder is met when the requirements
in A, B, C, or D are satisfied. . . .
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing an additional and significant
work-related limitation of function[.]
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05. In order to satisfy “paragraph C” of Listing
12.05, a claimant must prove that he has a reduced mental capacity with deficits in
adaptive functioning, as defined in the capsule definition;5 an IQ of 60 through 70; and an
additional physical or mental impairment which poses a significant limitation. 20 C.F.R. pt.

4

The name for Listing 12.05 was “mental retardation” at the time the ALJ issued his
Decision on February 6, 2013. Tr. 9. This name was changed to the current term “intellectual
disability” in September of 2013. See Change in Terminology: “Mental Retardation” to “Intellectual
Disability,” 78 Fed. Reg. 4649-01, 2013 WL 3936340 (Aug. 1, 2013) (codified at 20 C.F.R. pt. 404,
subpt. P, app. 1, § 12.05).
5

The “capsule definition” is the phrase used to describe the language in the introductory
paragraph of Listing 12.05. See Barnes v. Barnhart, 116 F. App’x 934, 938-39 (10th Cir. 2004)
(noting that “[t]he agency refers to this introductory paragraph as the ‘capsule definition’” and the
capsule definition “imposes additional elements to . . . Listing 12.05(C)”); Perez v. Colvin, No. 13cv-02914-MEH, 2014 WL 5473751, at *13 (D. Colo. Oct. 29, 2014).

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404, subpt. P, app. 1, § 12.05; Timmons v. Astrue, 360 F. App’x 984, 987 (10th Cir. 2010);
Lax v. Astrue, 489 F.3d 1080,1085 (10th Cir. 2007).
In part, Plaintiff argues that the ALJ erred in his rejection of Plaintiff’s IQ score
because the ALJ improperly based his findings on Plaintiff’s efforts during his psychological
evaluations and IQ test, Plaintiff’s diagnosis of borderline intellectual functioning, and
Plaintiff’s GAF scores. Brief [#17] at 1, 8-12. "The GAF is a 100-point scale divided into
ten numerical ranges, which permits clinicians to assign a single ranged score to a person’s
psychological, social, and occupational functioning.” Keyes-Zachary v. Astrue, 695 F.3d
1156,1162 n.1 (10th Cir. 2012).
An ALJ does not need to “simply accept IQ results.” McKown v. Shalala, 5 F.3d 546
Table), 1993 WL 335788, at *3 (10th Cir. Aug. 26, 1993). “It is within the province of an
ALJ to make factual determinations regarding the validity of an IQ score, that is whether
the IQ score is an accurate reflection of [a claimant’s] intellectual capabilities.” Flores v.
Astrue, 285 F. App’x 566, 568 (10th Cir. 2008) (quoting Lax, 489 F.3d at 1087) (internal
quotations omitted). Because the results of an IQ test are “only part of the overall
assessment,” the ALJ must also look at “the narrative report that accompanies the test
results [which] should comment on whether the IQ scores are considered valid and
consistent with the developmental history and the degree of functional limitation” when
making a determination on validity. 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00D.6.a.
Thus, an ALJ may find an IQ score invalid for a number of reasons as long as there is
substantial evidence to support the conclusion. McKown, 1993 WL 335788, at *3.
Here, although Plaintiff had a full-scale IQ score of 65, Tr. 363, the ALJ found
Plaintiff’s IQ score to be invalid because of Plaintiff’s credibility. Tr. 19-20. Specifically, the

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ALJ found that Plaintiff’s IQ score was not entirely credible based upon the reports of three
psychologists. Tr. 19-22. The ALJ afforded weight to these opinions because the reports
were created by mental health professionals and were generally consistent with one
another. Tr. 21. In contrast, the ALJ afforded less weight to the January 2010 consultative
physician’s report because the physician who conducted the assessment lacked the
expertise to evaluate mental impairments.6 Tr. 21, 274-78.
The ALJ noted that all three psychologists’ reports were consistent in finding that
Plaintiff was not entirely credible. Specifically, Frederick Leidal, Psy. D. (“Dr. Leidal”), who
administered Plaintiff’s full-scale IQ test in 2008, which resulted in a full-scale score of 65,
found that Plaintiff’s IQ results “appear[ed] fairly valid, possibly slightly low. Effort was
below average on some subsets.” Tr. 363. The Court notes that the full-scale IQ test
administered by Dr. Leidal was the only full-scale test administered to Plaintiff. Dr. Leidal
further stated that during the administration of the memory test, “[t]he following scores
appear below expectations and likely invalid. The patient’s effort was below average,
again.” Tr. 364. Dr. Leidal concluded, “Although, [Plaintiff’s] cognitive abilities are very low,
his effort was questionable on some tests, he is depressed, and he has a history of chronic
alcoholism that could have also lowered some scores.” Tr. 364-65.
Stuart Kutz, Ph.D. (“Dr. Kutz”), who examined Plaintiff in January of 2010, also noted
that Plaintiff’s credibility was questionable. Tr. 280. Dr. Kutz stated that there was “a
question of some symptom exaggeration” and that Plaintiff’s “level of cooperation overall,
as well as his reliability, are questionable. . . .” Tr. 280. He further stated that “[b]asic

6

The ALJ did afford weight to the 2010 physician’s report when the ALJ discussed
Plaintiff’s physical impairments because the physician had the expertise in that area. Tr. 21.

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cognitive functions seem to be somewhat limited, but again with questions about his level
of effort.” Tr. 285. Dr. Kutz also specifically noted that Plaintiff’s memory results “raise[d]
questions as to credibility.” Tr. 283-84. The third psychologist, M. Ellen Fontenot, Psy. D.
(“Dr. Fontenot”), examined Plaintiff in August of 2011 and similarly found that Plaintiff’s
“[e]ffort on [mental-status exam] appeared [below] average.” Tr. 307. Thus, Dr. Leidal, Dr.
Kutz, and Dr. Fontenot consistently found Plaintiff’s credibility to be an issue.
In addition to specifically noting Plaintiff’s credibility, the three psychologists
discussed Plaintiff’s GAF scores. Tr. 285, 308, 365. Plaintiff consistently received a
moderate category GAF score, with Dr. Leidal finding a GAF score of 59 and both Dr. Kutz
and Dr. Fontenot finding a GAF score of 58. Tr. 285, 208, 365. See Am. Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 32, 34 (Text Revision 4th ed. 2000)
(“51–60: Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic
attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few
friends, conflicts with peers or co-workers).”) (internal quotations omitted). The ALJ took
specific note of Dr. Kutz’s GAF finding and stated “[a] GAF score of 58 is at the higher
functioning end of the range of scores[.]” Tr. 20. Although Plaintiff correctly states that the
GAF score is no longer used, at the time Plaintiff was evaluated and when the ALJ made
his determination, the GAF score was used to assess psychological functioning. See
Fernandez v. Colvin, No. 13-cv-00376-RM, 2016 WL 447556, at *2 n.2 (D. Colo. Feb. 5,
2016) (noting that “the current Diagnostic and Statistical Manual of Mental Disorders
(DSM-V) does not use GAF”); see also Am. Psychiatric Ass’n Diagnostic and Statistical
Manual of Mental Disorders (DSM-V) 16 (5th ed. 2013) (which was published on May 18,
2013). Thus, the ALJ permissibly used the GAF score as evidence of Plaintiff’s credibility.

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See, e.g., Walker v. Colvin, No. , 2015 WL 1816589, at *6 (D. Colo. Apr. 20, 2015) (“The
range of the GAF scores combined with the records of [plaintiff’s] mental health
assessments are sufficient to meet the standards for substantial evidence to support the
ALJ’s conclusion”).
Along with the consistently moderate GAF scores, Plaintiff was found by all three
psychologists to be at a borderline level of intellectual function rather than at a mild mental
retardation level. Tr. 285, 308, 364. Dr. Fontenot went further and stated that Plaintiff did
not meet the criteria for mild mental retardation because “there [was] no evidence of IQ <70
prior to the age of 18.” Tr. 308.
Based upon the three psychological evaluations, all which noted that Plaintiff’s effort
and credibility were questionable, the moderate GAF scores, and the consistent finding that
Plaintiff was at a borderline level of intellectual function, there is substantial evidence
supporting the ALJ’s finding that Plaintiff was not entirely credible in his three psychological
evaluations nor was he entirely credible during his only IQ test. See Flores, 285 F. App’x
at 568; Lax, 489 F.3d at 1087. Accordingly, the Court finds there was substantial evidence
to support the ALJ’s determination that Plaintiff’s IQ score was not a valid IQ score, as
required under Listing 12.05C; and therefore the ALJ did not commit reversible error with
respect to his step three analysis.7 See Glenn v. Shalala, 21 F.3d 983, 988 (10th Cir. 1994)

7

Plaintiff had the burden of proof to establish error by showing “that the record
demonstrate[d] [that he met] the requirements of Listing 12.05C,” which includes a showing of a
valid IQ score. Perez v. Colvin, No. 13-cv-02914-MEH, 2014 WL 5473751, at *13 (D. Colo. Oct.
29, 2014). Because the record demonstrates that Plaintiff’s IQ score was not valid, Plaintiff did not
meet his burden of proof; therefore the Court does not need to address Plaintiff’s other arguments
regarding step three. See Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990), superseded by statute
on other grounds as stated in Colon v. Apfel, 133 F. Supp. 2d 330, 338-39 (S.D.N.Y. 2001) (“For
a claimant to show that his impairment matches a listing, it must meet all of the specified medical
criteria. An impairment that manifests only some of those criteria, no matter how severely, does
not qualify.”); Lax v. Astrue, 489 F.3d 1080, 1089 (10th Cir. 2007) (addressing claimant’s Listing

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(explaining that the court must affirm if, considering the evidence as a whole, there is
sufficient evidence which a reasonable mind might accept as adequate to support a
conclusion).
B.

Step 4: Plaintiff’s Daily Activities
Plaintiff argues that the ALJ erred in relying on Plaintiff’s daily activities as evidence

that Plaintiff did not suffer disabling symptoms. Brief [#17] at 17-20. Plaintiff specifically
contends that the ALJ found Plaintiff to not be credible based upon Plaintiff’s testimony
regarding his daily activities. Id. at 13-14.
Evidence that a claimant engages in limited daily activities does not establish that
the claimant has an ability to work. Gossett v. Bowen, 862 F.2d 802, 807 (10th Cir. 1988);
Hamlin v. Barnhart, 265 F.3d 1208, 1220–21 (10th Cir. 2004). However, this type of
evidence may be considered along with other evidence in determining whether the claimant
is entitled to disability benefits. Gossett, 862 F.2d at 807.
Here, the ALJ found that Plaintiff’s “statements concerning the intensity, persistence
and limiting effects of [Plaintiff’s] symptoms [were] not entirely credible” and that the “record
as a whole [did] not appear to support the severity of symptoms and limitations alleged by
[Plaintiff].” Tr. 19. The ALJ further found that “[t]hough [Plaintiff] alleged impairments
severe enough to cause him to be unable to work, he described certain activities in his
testimony and Function Report—Adult . . . that do not support that contention.” Tr. 19. The
ALJ then summarized Plaintiff’s statements about daily activities and stated:

12.05(C) argument, finding that the “argument would ultimately fail because 12.05(C) also requires
a valid IQ score and we have already determined that [the claimant’s] IQ scores [were] invalid”);
King v. Astrue, No. 10–cv–01530–LTB, 2011 WL 3471015, at *4 (D. Colo. Aug. 8, 2011) (“[p]laintiff
therefore had to show . . . that he had a valid IQ score of 70 or below”).

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[Plaintiff] noted dusting, feeding pet birds, taking out trash, watering the lawn,
doing laundry, cleaning up after a pet dog, and generally doing chores for an
hour at a time before resting for 30 minutes. . . . [Plaintiff has] some difficulty
reaching overhead to put on shirts and bending to put on shoes . . . some
problems holding a razor to shave. . . . [Plaintiff] noted driving a car . . .
shopping in stores once a month for groceries and personal items . . . he can
pay bills, count change, and use a debit card. Socially, he described no
problems getting along with his brother, with whom he lives. He also
reported spending time with his girlfriend once a month.
Tr. 19. The Court finds that the ALJ’s summary of Plaintiff’s testimony about his daily
activities is supported by the record. See Tr. 47-48, 206-09.
“Credibility determinations are peculiarly the province of the finder of fact, and we
will not upset such determinations when supported by substantial evidence.” Wilson v.
Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010) (internal quotations omitted); see also White
v. Barnhart, 287 F.3d 903, 909 (10th Cir. 2001). “Nevertheless an ALJ’s adverse credibility
finding ‘should be closely and affirmatively linked to substantial evidence and not just a
conclusion in the guise of findings.’” Mendez v. Colvin, 588 F. App’x 776, 779 (10th Cir.
2014) (quoting Wilson, 602 F.3d at 1144). The ALJ is not required to set forth a formalistic
factor-by-factor recitation of the evidence, but must only set forth the specific evidence he
relied on in evaluating Plaintiff’s testimony. See Qualls v. Apfel, 206 F.3d 1368, 1372 (10th
Cir. 2000). Specific evidence that the ALJ can evaluate and rely upon includes:
the levels of medication and their effectiveness, the extensiveness of the
attempts (medical or nonmedical) to obtain relief, the frequency of medical
contacts, the nature of daily activities, subjective measures of credibility that
are peculiarly within the judgment of the ALJ, the motivation of and
relationship between the claimant and other witnesses, and the consistency
or compatibility of nonmedical testimony with objective medical evidence.
Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988); see also id. at 1132 n.7 (noting
further that these factors “are not exhaustive . . . but merely illustrative”). Therefore, as
long as the ALJ links his credibility assessment to specific evidence in the record, his
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determination is entitled to substantial deference. White, 287 F.3d at 910; see also Qualls,
206 F.3d at 1372.
The Court finds that the ALJ appropriately considered Plaintiff’s daily activities in the
evaluation of Plaintiff’s alleged disability because the ALJ also relied on other evidence in
the record in making his overall credibility determination, specifically, the objective medical
evidence. See Huston, 838 F.2 at 1132 n.7 (“When weighed in combination, such factors
can shed light on the determination of credibility”). In making his determination, the ALJ
reviewed Plaintiff’s records from Denver Health Medical Center, the 2010 physical
examination, and the 2013 x-rays and MRIs of Plaintiff’s knees and shoulders. Tr. 21. See
also Tr. 276, 318, 322-24,326, 341, 343, 346, 354-56, 399-401, 403-09. In evaluating the
above medical evidence, in combination with Plaintiff’s statements about his daily activities,
the ALJ found that:
[Plaintiff’s] physical conditions, his subjective complaints and alleged
limitations do not appear to be supported by examination findings . . . [The]
treatment records do not document the severe pain in multiple joints that
[Plaintiff] described, nor do they document a need to be in bed all day
because of pain or depression. These records also do not document
abnormalities in his hands. Essentially the treatment records do not show
examination findings significantly different from those at the earlier [2010]
consultative physical examination . . . [Plaintiff’s] musculoskeletal
examination . . . was ultimately concluded to be benign overall, and the
opinion of the examining physician was that [Plaintiff] was capable of
performing light to moderate, but not extreme, activities.
Tr. 21.
Accordingly, the Court finds that the ALJ set forth specific evidence—daily activities
and objective medical records—which he used in evaluating Plaintiff’s credibility, and thus
he sufficiently linked his determination to substantial evidence in the record. See White,
287 F.3d at 910 (“determination did not rest on mere boilerplate language, but instead was

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linked to specific findings of fact . . . [that were] fairly derived from the record”); see also
Wilson, 602 F.3d at 1144 (“Credibility determinations are peculiarly the province of the
finder of fact, and we will not upset such determinations when supported by substantial
evidence.”) (internal quotations omitted). Therefore, the ALJ did not commit reversible
error in evaluating Plaintiff’s daily activities in combination with the medical records. See
Broadbent v. Harris, 698 F.2d 407, 413 (10th Cir. 1983) (stating that “[daily activities] may
be considered, along with medical testimony, in the determination of whether a party is
entitled to disability benefits”).
C.

Step 5: Vocational Expert Testimony
Plaintiff argues that the ALJ erred in his step five finding because the VE’s testimony

about the Dictionary of Occupational Titles (“DOT”) was not consistent regarding the job
of press operator. Brief [#17] at 16, 18. Specifically, Plaintiff asserts that when the VE
spoke about the position of press operator, the response was not consistent with the ALJ’s
hypothetical question, which asked for a position “at a reasoning math or language level
of no greater than one,” Tr. 50, because the position of press operator has a reasoning
level of 2, a math level of 1, and a language level 2. Brief [#17] at 17. Plaintiff contends
that the ALJ’s reliance on the VE’s testimony constitutes reversible error. Id.
Plaintiff further asserts that the VE’s testimony regarding the job of inspector,
graders and sorters was unclear because the VE first stated that Plaintiff could perform the
position of “grader and sorter,” but then when discussing the number of positions that
existed, the VE stated “inspector, graders and sorters.” Id. at 18-19. Plaintiff contends that
because the VE’s testimony causes confusion, it is not certain as to the number of jobs
which exist. Id. at 19.

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According to applicable law,
When a VE . . . provides evidence about the requirements of a job or
occupation, the adjudicator has an affirmative responsibility to ask about any
possible conflict between that VE . . . evidence and information provided in
the DOT. In these situations, the adjudicator will:
Ask the VE . . . if the evidence he or she has provided conflicts with
information provided in the DOT; and
If the VE’s . . . evidence appears to conflict with the DOT, the adjudicator will
obtain a reasonable explanation for the apparent conflict.
SSR 00-4p, 2000 WL 1898704, at *4; see also Haddock v. Apfel, 196 F.3d 1084, 1091
(10th Cir. 1999) (An ALJ “must investigate and elicit a reasonable explanation for any
conflict between the [DOT] and the expert testimony before the ALJ may rely on the
expert’s testimony as substantial evidence to support a determination of nondisability.”).
“[W]hen a VE provides evidence about the requirements of a job or occupation, the
ALJ has an affirmative responsibility to ask about any possible conflict between the expert’s
testimony and the DOT, and if the VE’s testimony appears to conflict with the DOT, to
obtain a reasonable explanation for the apparent conflict.” Holcom v. Barnhart, 79 F. App’x
397, 398 (10th Cir. 2003) (quoting Haddock, 196 F.3d at 1087) (internal quotations
omitted).
The VE’s testimony regarding the positions of press operator and inspector, graders
and sorters is as follows:
[ALJ] Q. . . . Assume our individual is able to maintain concentration,
persistence and pace in order to carry out, understand and remember
instructions that would be at a reasoning math or language level of no greater
than one as defined in the Dictionary of Occupational Titles and it’s
companion, the Selective Characteristics of Occupations . . . Would there be
unskilled occupations that this first individual could perform?
[VE] A. I believe so. At the light, unskilled level, I have listings of positions
as a press operator. That’s DOT 690.685-014. That’s light with an SVP of
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2. Positions as a grader and sorter, 529.687-186, and that is light with an
SVP of 2.
[ALJ] Q. And these have the reasoning, math, language level no greater
than 1.
[VE] A. Yes, Your Honor, they are basic levels.
[ALJ] Q. So as described in the DOT it’s at a level of 1?
[VE] A. Yes.
[ALJ] Q. Okay. And how many of the press operators, graders and sorters
might there be?
[VE] A. In the national economy, 320,000. In the inter mountain area, which
includes Montana, Wyoming and Colorado, approximately 1,300. Inspectors,
graders and sorters, on the national level, 354,000. In the inter mountain
area, approximately 1,000.
[ALJ] Q. And the two occupations that you’ve identified, are these just
examples or are these the only occupations?
[VE] A. These are examples.
[ALJ] Q. As you’ve identified the two examples, how do they compare with
their description in the Dictionary of Occupational Titles?
[VE] A. They’re consistent.
Tr. 50-52.
As Plaintiff correctly points out, the VE’s testimony is not consistent with the DOT.
Brief [#17] at 16-18. The DOT states that a press operator has a reasoning and language
level of 2 and a math level of 1, whereas the VE stated that press operator was at a level
of 1.

See Assembly-press operator (DOT 690.685-014), 1991 WL 678500 (2008).

Although the ALJ did ask how the position of press operator compared with the DOT and
the VE responded that they were consistent, this is not a “reasonable explanation for the
apparent conflict.” Roman v. Colvin, No. 13-cv-03215-RBJ, 2015 WL 1345430, at *5 (D.

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Colo. Mar. 23, 2015) (finding that the ALJ’s inquiry into whether the VE’s testimony was
consistent with the DOT was not sufficient under SSR 00–4p, 2000 WL 1898704); but see
Sitsler v. Astrue, 410 F. App’x 112, 120 (10th Cir. 2011) (remanding in part because the
ALJ did not ask “whether the VE[’s] testimony was consistent with the DOT”). Thus the
Court finds that there is an apparent conflict between the VE’s testimony and the DOT,
which the ALJ did not ask the VE to resolve. See, e.g., Headley v. Colvin, No. 13-cv02989-WYD, 2015 WL 1525561, at *8 (D. Colo. Mar. 31, 2015) (finding a remand was
required because the VE’s testimony was not consistent with the DOT).
However, the ALJ committed harmless error because the VE identified an additional
job, “grader and sorter” that Plaintiff could perform based on the hypothetical question
posed by the ALJ. Tr. 51. Plaintiff argues that it is unclear as to what position the VE was
referring to—specifically that it is unclear whether the VE meant a position of “grader and
sorter” or the position of “inspectors, graders and sorters.” Id. Based on the record, the
VE specifically testified that the position he was referring to was DOT position 529.687-186.
Tr. 51. DOT position 529.687-186 is “grader and sorter” and this position is consistent with
a reasoning, language, and math level of 1. Brief [#17] at 19. Although the VE did state
“inspector,” “this is not an instance in which the alleged conflict was so obvious . . . that the
ALJ should have picked up on [it] without any assistance.” Laughton v. Astrue, No. 08-cv01848-REB, 2009 WL 2372352, at *3 (D. Colo. July 30, 2009) (quoting Overman v. Astrue,
564 F.3d 456, 463 (7th Cir. 2008)) (internal quotations omitted).
Additionally, according to the VE, DOT position 529.687-186 “grader and sorter”
exists in significant numbers in the national economy. Raymond v. Astrue, 621 F.3d 1269,
1274 (10th Cir. 2009) (holding that the third job identified by the VE existed in significant

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numbers in the national economy and therefore the ALJ’s reliance on the VE’s testimony
about the other two jobs, which the claimant could not perform, was harmless error); see
also Evans v. Colvin, __ F. App’x __, __, 2016 WL 362438, at *3 (10th Cir. Jan. 29, 2016)
(“[W]e have held an ALJ’s erroneous inclusion of some jobs to be harmless error where
there remained a significant number of other jobs in the national economy.”) (citing
Bainbridge v. Colvin, 618 F. App’x 384, 391-92 (10th Cir. 2015) (500,000 jobs); Shockley
v. Colvin, 564 F. App’x 935, 940-41 (10th Cir. 2014) (215,000 jobs); Chrismon v. Colvin,
531 F. App’x 893, 899-900 (10th Cir. 2013) (212,000 jobs); Stokes v. Astrue, 274 F. App’x
675, 684 (10th Cir. 2008) (152,000 jobs)).8 Here, the VE’s testimony about the number of
jobs which existed for the position of “grader and sorter” was that there were 354,000 jobs
nationally and 1,000 jobs regionally. Tr. 51. Therefore, “any reasonable trier of fact would
be compelled to conclude” that 354,000 is a significant number for jobs in the national
economy for the purposes of a step-five determination. Bainbridge, 618 F. App’x at 392
(citing Raymond, 621 F.3d at 1274); Stokes, 274 F. App’x at 684 (finding that “152,000 jobs
available nationally” was a significant number); see also Quintana v. Colvin, No. 14-1134SAC, 2015 WL 4664980, at *6 (D. Kan. Aug. 6, 2015) (stating “in a number of cases, the
10th Circuit determined that the ALJ committed harmless error because the court found
that when the remaining number of jobs . . . nationally range from 152,000 to 215,000, no
reasonable factfinder could have determined that a suitable number of jobs did not exist
in significant numbers.”)
Therefore, there is substantial evidence to support the ALJ’s conclusion that “there
8

See also Raymond, 621 F.3d at 1274 n.2 (clarifying that Trimiar v. Sullivan, 966 F.2d 1326
(10th Cir. 1992) “indicated that the relevant test is either jobs in the regional economy or jobs in the
national economy” and that the court in Trimiar used the regional economy test because the VE’s
testimony was about the regional economy).

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are jobs that exist in significant numbers in the national economy that [Plaintiff] can
perform,” Tr. 22, because the position of “grader and sorter” exists at a number of 354,000
in the national economy. Accordingly, the Court finds that the ALJ committed no reversible
error in his step five analysis and his reliance on the VE’s testimony.
IV. Conclusion
For the foregoing reasons, the record contains substantial evidence from which the
ALJ concluded that Plaintiff is not entitled to benefits under the Act during the time relevant
to this case. The ALJ’s decision was based upon substantial evidence and is free of
reversible legal error. Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner that Plaintiff is not
disabled is AFFIRMED.
IT IS FURTHER ORDERED that each party shall bear its own costs and attorney’s
fees.
Dated: March 29, 2016

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